Citation Nr: 1303013
Decision Date: 01/29/13 Archive Date: 02/05/13
DOCKET NO. 98-05 197 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for otitis media.
2. Entitlement to service connection for a gastrointestinal disorder, including as due to service-connected prostatitis (and treatment thereof) and a psychiatric disorder, but excluding compensation benefits under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for that disorder.
3. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a gastrointestinal disorder.
4. Entitlement to an effective date earlier than October 20, 1994, for a total rating based upon individual unemployability due to service-connected disabilities (TDIU).
5. Entitlement to an effective date earlier than August 8, 2001, on a finding that the Veteran is permanently and totally disabled (previously characterized as entitlement to an effective date earlier than August 8, 2011, for eligibility for Dependent's Educational Assistance under Chapter 35 of Title 38, United States Code).
REPRESENTATION
Appellant represented by: Eric A. Gang, Attorney at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D.J. Drucker, Counsel
INTRODUCTION
The Veteran served on active duty from January 1951 to January 1953.
These matters initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
By way of a very long and complex procedural history, the Board notes that, in a December 1997 rating decision, the RO denied service connection for indigestion (recharacterized on appeal as a gastrointestinal disorder).
In a June 1998 rating decision, the RO granted the Veteran's claim for a TDIU, effective from October 20, 1994. At that time, the RO denied eligibility to Dependents' Educational Assistance and entitlement to special monthly compensation on account of being in need of regular aid and attendance, or being housebound.
In October 1998, the Board remanded the Veteran's claim of service connection for a gastrointestinal disorder to the RO for further development.
In a February 2000 decision, the Board denied an effective date earlier than October 20, 1994, for a TDIU. At that time, the Board remanded the Veteran's claim of service connection for a gastrointestinal disorder to the RO for further development.
The Veteran appealed the Board's February 2000 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2001, pursuant to a Joint Motion for Remand, the Court vacated the Board's February 2000 decision that denied an earlier effective date for TDIU and remanded the matter for compliance with the Veterans Claims Assistance Act of 2000 (VCAA).
In August 2001, the RO determined that the Veteran had basic eligibility for Dependents Educational Assistance under 38 U.S.C. Chapter 35, effective from the date of that rating, August 8, 2001. However, the Board found that this issue was more accurately characterized as entitlement to an effective date earlier than August 8, 2001, on a finding that the Veteran is permanently and totally disabled, inasmuch as he is pursuing CHAMPVA (Civilian Health and Medical Program VA) benefits for his dependents, and not Dependent's Educational Assistance under Chapter 35 of Title 38, United States Code.
In a May 2002 decision, the Board denied entitlement to an effective date earlier than October 20, 1994 for a TDIU. At that time, the Board remanded the Veteran's claim of service connection for a gastrointestinal disorder to the RO for further evidentiary development.
The Veteran appealed the Board's May 2002 decision to the Court. In December 2002, the Court vacated the Board's decision that denied an effective date earlier than October 20, 1994, for a TDIU, and remanded the matter to the Board for action consistent with a Joint Motion for Remand.
In a February 2003 rating decision, the RO denied the Veteran's claim of service connection for otitis media.
In December 2003, the Board remanded the issues of entitlement to an effective date earlier than October 20, 1994, for a TDIU, an effective date earlier than August 8, 2001, for eligibility for Dependent's Educational Assistance under Chapter 35 of Title 38, United States Code, and service connection for a gastrointestinal disorder.
The December 2003 remand noted that the effective date issues were previously been denied by the Board, were appealed to the Court, and were vacated by the Court and remanded for compliance with the Veterans Claims Assistance Act of 2000 (VCAA). The Board remanded the effective date issues to the RO for further evidentiary and procedural development that included providing the Veteran with VCAA complying notice.
In an August 2006 decision, the Board denied entitlement to service connection for a gastrointestinal disorder and remanded the claims for service connection for otitis media, an effective date earlier than October 20, 1994, for a TDIU, and an effective date earlier than August 8, 2001, for a finding that the Veteran is permanently and totally disabled.
In a July 2007 rating decision, the RO denied service connection for tinnitus. The Veteran filed a notice of disagreement with that determination and received a statement of the case dated in November 2007. However, there is no evidence in the record before the Board that he perfected an appeal as to the matter.
In a June 2008 decision, the Board denied entitlement to service connection for otitis media, an effective date earlier than October 20, 1994, for a TDIU, and an effective date earlier than August 8, 2001, on a finding that the Veteran is permanently and totally disabled.
The Veteran appealed the Board's August 2006 and June 2008 decisions to the Court. In an August 2008 Memorandum Decision, the Court, in pertinent part, vacated the Board's August 2006 decision that denied entitlement service connection for a gastrointestinal disorder, and remanded the matter to the Board.
In May 2009, the Court vacated the Board's June 2008 decision that denied service connection for otitis media, an effective date earlier than October 20, 1994, for a TDIU, and an effective date earlier than August 8, 2001, on a finding that the Veteran is permanently and totally disabled, and remanded these matters for action consistent with a Joint Motion for Remand dated that same month.
In a December 2010 decision, the Board denied the Veteran's claim for service connection for a gastrointestinal disorder, including as secondary to service-connected prostatitis, including treatment for the same. At that time, the Board remanded his claims for service connection for otitis media and effective dates earlier than October 20, 1994, for a TDIU and earlier than August 8, 2001, on a finding that he was permanently and totally disabled to the RO via the Appeals Management Center (AMC) in Washington, D.C. for further evidentiary development.
The Veteran appealed the Board's December 2010 decision that denied service connection for a gastrointestinal disorder, including as secondary to service-connected prostatitis, including treatment for the same, to the Court. In a Joint Motion for Partial Remand, the Veteran and the VA General Counsel averred that remand was warranted because the Board failed to provide an adequate statement of the reasons or bases for its decision, particularly whether compensation benefits were payable to him for his gastrointestinal disorder, pursuant to 38 U.S.C.A. § 1151. In an August 2011 Order, the Court remanded that part of the Board's decision that denied entitlement to service connection for a gastrointestinal disorder including as secondary to service-connected prostatitis, including treatment for same, to the Board to comply with the parties' Joint Motion for Partial Remand.
In February 2012, the Board remanded the Veteran's claims for service connection for a gastrointestinal disorder, to include as secondary to service-connected prostatitis (and treatment thereof) and a psychiatric disorder, but excluding compensation benefits under 38 U.S.C.A. § 1151 for that disorder, and compensation benefits under 38 U.S.C.A. § 1151 for a gastrointestinal disorder to the RO via the AMC for further development.
The issues of entitlement to service connection for a gastrointestinal disorder, compensation benefits under 38 U.S.C.A. § 1151, and effective dates earlier than October 20, 1994 for a TDIU and August 8, 2011 for a finding that the Veteran is permanently and totally disabled, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
A preponderance of the evidence of record is against a finding that the Veteran has a currently diagnosed ear disease, including otitis media or otitis externa, that had its onset during active military service.
CONCLUSION OF LAW
The criteria for service connection for otitis media have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
Here, the Veteran was sent letters in October 2002 and January 2005 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. A May 2007 letter regarding another matter provided notice as to how VA assigns an appropriate disability rating or effective date. Accordingly, no further development is required with respect to the duty to notify.
Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All reasonably identified and available VA and non-VA medical records were obtained. A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence relevant to the claim on appeal.
The Veteran was afforded VA examinations in September 2006 and July 2012 in conjunction with his claim and the examination reports are of record. The July 2012 examination report is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion with a rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012).
As noted above, in December 2010, the Board remanded the Veteran's case to the RO for further development that included scheduling him for a VA examination and obtaining outstanding medical records. There has been substantial compliance with the Board's remand as, in July 2012, the Veteran underwent VA examination for ear disorders. VA medical records, dated to June 2012, were obtained.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. Records obtained from the Social Security Administration (SSA) include a November 1972 disability transmittal record indicating that the Veteran was considered unable to work since September 1970 due to chronic bronchitis and pneumoconiosis due to coal dust. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.
For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. Legal Analysis
In written statements in support of his claim, the Veteran asserts that he has otitis media (also referred to as otitis externa) that began in service. Thus, he contends that service connection is warranted for otitis media. Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claim, the Board is of the opinion that service connection is not warranted.
The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992).
Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement.
A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). This requirement "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).
Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011).
However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of ear disease pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).
In this case, service treatment records dated in July 1952 show that the Veteran was diagnosed with otitis externa. On a Report of Medical History completed in January 1953, when he was examined for discharge, the Veteran denied having ear, nose, or throat trouble. On clinical examination, evaluation of his ears was normal and there were no objective findings that refer to acute or chronic otitis media or otitis externa.
Post service, VA and non-VA medical records, dated from 1971 to 2012, include an April 1996 VA Audiological Case History that reflects the Veteran's complaints of difficulty hearing. He reported having a history of earache in service in approximately 1952 and pain, drainage, and itching several times a year, for which he was seen in the VA primary care clinic for medication.
When seen in the VA outpatient audiology clinic in May 2000, the Veteran complained of his hearing aids whistling and making noise but he did not report having earaches or infections.
In February 2003, the Veteran was evaluated in the VA outpatient audiology clinic. On examination, otoscopy revealed moderate cerumen in both ears but neither otitis media nor externa was noted.
In September 2003, the Veteran sought VA treatment for an ear ache in his left ear that he had for two or three days. The assessment was bilateral cerumen impaction.
According to a February 2005 private medical record prepared by an audiologist, the Veteran reported having frequent earaches and infections, with his last episode occurring approximately one month earlier. It was noted that results of otoscopic examination prior to testing revealed relatively clear ear canals, bilaterally.
A May 2005 VA medical record reflects that the Veteran sought treatment for his ears. He reported that his wife cleaned his ears the previous day with mineral water and hot water, and he currently had discomfort in his left ear. He gave a history of chronic pain in his left ear. The diagnosis was acute nonsuppurative otitis media of the left ear.
In September 2006, the Veteran underwent VA examination performed by an ear, nose, and throat (ENT) specialist. The examiner reviewed the Veteran's medical records and performed a clinical evaluation. On examination, objective findings revealed clear ear canal(s), but the right ear was filled with wax. It was cleaned and a normal tympanic membrane on the right was revealed. The left membrane was also normal. There was no fluid present. The VA examiner found no evidence of otitis media.
An October 2006 VA audiological examination report included findings regarding the Veteran's hearing acuity. It did not indicate that he had otitis media, but the question was not addressed by the examiner.
In an August 2007 written statement, the Veteran, through his attorney, asserted that, while VA examinations may not have revealed infections, he suffered from recurrent infections since military service.
In July 2012, the Veteran underwent a VA examination for ear disorders. The examiner reviewed the Veteran's medical records and performed a clinical evaluation. The Veteran gave a history of having a left ear infection in service in 1951 or 1952 and was seen by a service physician. He reported having intermittent episodes of itching and aches of his ears, particularly the left one. After discharge, the Veteran said he saw his primary care physician and was prescribed penicillin lotion in 1954. Objectively, examination of his external ear, ear canal, and tympanic membrane was normal.
In the VA examiner's opinion, the Veteran's claimed otitis media was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that, as per the Veteran's July 29, 1952 service treatment record, on one occasion otitis externa was mentioned but no mention of treatment for the disorder was noted. The Veteran had no documented diagnosis of or treatment for acute or chronic otitis media in service. According to the VA examiner "[t]he Veteran has no clinical evidence of otitis media and otitis externa on today's examination." The VA examiner opined that the Veteran's "otitis externa was [an] acute and self limited condition." Further, the VA physician noted that the Veteran's September 2006 VA examination was performed by an ENT specialist who found no clinical evidence of otitis media and otitis externa in both ears. The VA examiner "also agree[ed] with our ENT specialist that [the Veteran] has no evidence of otitis media or otitis externa."
With respect to the Veteran's claim of service connection for otitis media, in the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. at 225. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of an otitis media (or externa) disorder, the Board must conclude the Veteran does not currently suffer from such a disability.
The Board acknowledges that a current disability for service connection purposes is satisfied if the evidence demonstrates its existence at any time during the appeal period, even if such is not currently shown. McClain v. Nicholson, 21 Vet. App. at 319 (2007). Thus, the Board must consider the otitis media complaints raised during the pendency of the claim. Here, the VA medical records during the pendency of the Veteran's claim include the May 2005 VA outpatient record diagnosing acute nonsuppurative otitis media of the left ear, that had evidently resolved by the time of the September 2006 and July 2012 VA examinations. Id.
However, the VA examiner opined that there was no diagnosis of otitis media (or otitis externa). The Board accepts the VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). The VA examiner's opinion is entirely consistent with that rendered by the VA ENT specialist in September 2006. There is no medical opinion of record to refute the VA examiners' opinions.
Without a diagnosed chronic otitis media disorder, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).
The Veteran is competent to state that he has pain in the area of his ear. However pain is not analogous to disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (the claimant was seeking service connection for a neck disability and an increased rating for a low back disability. On the issue of service connection, the Court held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted. Subsequently, the Federal Circuit dismissed the issue of service connection stating it was precluded from reviewing the factual determinations of the Board or the Court.). The Veteran is not competent to diagnose any otitis media or externa disability and, even if he could, any claim to this effect is contradicted by the clinical evidence. On VA examination in July 2012, there was no otitis media or externa disorder detected and the Veteran's ears were essentially normal. This finding is identical to that reported by the September 2006 VA ENT examiner. In fact, there is no clinical corroboration that the Veteran has had a chronic otitis media or externa disorder at any time during the appeal period and his claim is not established. Brammer v. Derwinski, 3 Vet. App. at 225; Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability").
Without a diagnosed otitis media or externa disability, there can be no valid claim of service connection. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for otitis media must be denied. See Gilbert v. Derwinski, 1 Vet. App at 49.
Even if the evidence could be favorably construed such as to enable a finding of current otitis disability, the claim of service connection must still fail. Indeed, the preponderance of the evidence is against a finding that a current ear disorder is related to active service. In so finding, the Board has considered the Veteran's contention that a relationship exists between his current otitis media (or externa) disorder and military service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).
The Veteran is competent to describe his observable symptoms, such as ear pain. However, he is not competent to make a statement of causation that is a medical determination. Barr v. Nicholson, 21 Vet. App. at 303; Buchanan v. Nicholson, 451 F.3d at 1331. To the extent he is claiming that ear problems have persisted since service, this is inconsistent with the overall record which reflects ear symptomatology surfaced after service.
The Board has considered the Veteran's statements as to his incurrence during service, in light of his service treatment records, post-service medical evidence, and the September 2006 and July 2012 VA medical opinions. The Board finds that the objective medical evidence of record is most persuasive and of more probative value than the appellant's assertions. The record reflects that the Veteran was treated on one occasion, in July 1952, for otitis externa, during military service. The post service records show that otitis media was diagnosed in his left ear in 2005, more than 50 years after his discharge from service. The gap of time between in-service otitis externa and the first post-service medical evidence of an ear infection is, in itself, significant, and weighs against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (to the effect that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability).
The Board recognizes that the absence of documented post-service treatment cannot, by itself, invalidate the Veteran's claims of continuous symptomatology. However, to the extent that the Veteran is claiming continuity of ear symptoms since service, he is not a reliable historian. Indeed, he denied ear difficulties on his Report of Medical History at service discharge and examination of his ears at that time was normal. He has not explained why he failed to mention pertinent difficulty when examined pursuant to service discharge. He also failed to note any problems with ear infections while receiving VA treatment, including treatment with audiology. Thus, the Board does not find that there is credible evidence of continuity of symptomatology present. Neither the clinical record nor the Veteran's statements support a finding of continuity and, thus, service connection is not warranted on this basis.
While the Veteran is competent to state that he experienced otitis media/externa in service in service, he is not competent to state that he has otitis media or externa, or other ear disease. That is not a condition that is readily recognizable by a layman, such as varicose veins or acne. See Jandreau v. Nicholson. Even medical professionals rely on otoscopes and other diagnostic tools to diagnose chronic ear disease. Moreover, the July 2012 VA examiner, who was reviewed the Veteran's in-service treatment records and reviewed his post service medical records, concluded that he did not have a diagnosed otitis media (or externa) disorder due to military service. The examiner's opinion is entirely consistent with that of the September 2006 VA ENT examiner who also found that the Veteran did not have otitis media or otitis externa. The Veteran's contentions are outweighed by the medical evidence and opinion of the VA examiner that reflects that his ears are normal.
The record also contains medical information from the Internet submitted by the Veteran in May 2007 in support of his claim that generally describes treatment for recurrent otitis media. It indicates that recurrent otitis media "is defined as three or more episodes of acute otitis media in six months or four or more episodes in one year, with the bouts of acute infection separated by intervals of full resolution".
The Board notes, however, that this document contains no specific findings pertaining to this Veteran's manifestation of otitis media. As a lay person, relying on a generic medical treatise, the Veteran is not qualified to render a medical opinion as to the etiology of the cause of his claimed otitis media disorder. See Wallin v. West, 11 Vet. App. at 514 (holding that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999).
In the present case, the medical literature submitted by the Veteran was not accompanied by the opinion of any medical expert. Furthermore, based on the analysis above, the competent medical evidence of record suggests that he does not currently have an otitis media disorder that is at least as likely as not related to his active military service. Here, the only probative medical opinions of record are against the Veteran's claim. Therefore, while the Board has considered the medical literature, it is not sufficient to outweigh the opinion of the July 2012 VA examiner.
In sum, the Board is left with just one documented complaint of ear pain in service, no documented complaints or findings of a diagnosed ear disorder after service until 2005, and two VA medical opinions to the effect that the Veteran does not currently have a diagnosed otitis media (or externa) disorder. The Board has considered the Veteran's contention that his otitis media began during or as a result of his military service, but there is nothing in the record to show that he possesses the requisite medical training or credentials needed to render a competent opinion. Again, as detailed, the Board finds such opinion to be of more probative value than the Veteran's contentions. See e.g., King. v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (to the effect that the Board need not accept lay statements as determinative and can find medical evidence more probative).
The questions involved regarding causation are medical in nature. As discussed above, the medical opinions of the VA examiners (based on a review of the claims file and with knowledge of the Veteran's in-service duties and in-service complaints) were negative. The Board has considered the Veteran's contention that his otitis media or externa began during or as the result of military service, but there is nothing in the record to show that he possesses the requisite training or credentials needed to render a competent opinion as to medical causation and it is not contended otherwise. Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence.
Additionally, the Board notes, that the diagnosis for otitis media rendered during the pendency of the Veteran's appeal was nonsuppurative otitis media that is rated as hearing impairment. See 38 C.F.R. § 4.87, Diagnostic Code 6201 (2012). However, service connection is in effect for bilateral hearing loss for which the Veteran receives a compensable disability evaluation.
In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for otitis media, and his claim must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001).
ORDER
Service connection for otitis media is denied.
REMAND
In February 2012, the Board remanded the Veteran's claims of service connection for a gastrointestinal disorder including as due to service-connected prostatitis and a psychiatric disorder, and compensation pursuant to 38 U.S.C.A. § 1151 for a gastrointestinal disorder, to the RO for further evidentiary development that included obtaining any additional VA treatment records. As noted, records dated to June 2012, were obtained.
The Veteran, through his attorney, asserts that compensation under 38 U.S.C.A. § 1151 for a gastrointestinal disorder is warranted due to his positive test for Clostridium difficile (C.diff) on February 14, 1997, at a private facility and subsequent VA medical treatment that ignored this diagnosis and failed to provide treatment for it. See November 6, 2009, September 30, 2010, and January 4, 2012, written statements from the Veteran's Attorney, raising a claim pursuant to 38 U.S.C.A. § 1151; see also Joint Motion for Partial Remand at page 2.
Compensation under 38 U.S.C.A. § 1151 shall be awarded for a qualifying additional disability as caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). A determination of the additional disability includes consideration of pathology prior to, during, and after VA treatment.
An October 2009 medical opinion from R.H.G., M.D., an internist (see Volume 6 of claims file), notes that results of a stool test performed on February 14, 1997, were positive for Clostridium difficile cytotoxin (C.diff) but treating physicians did not note the positive test result and incorrectly stated in the discharge that the C.diff test was negative. Dr. R.H.G. said that the Veteran was not treated for C.diff enteritis since diagnosed in February 1997.
In June 2010, a Veterans Health Administration (VHA) physician reviewed the Veteran's medical records and opined that the findings of the February 1997 colonoscopy were probably related to C.diff colitis that was likely secondary to antibiotics use (see Volume 5 of claims file). It was noted that, while biopsy findings did not rule out C.diff colitis, the Veteran's persistent symtoms were probably related to a different process, such as Crohn's disease. The VHA physician concluded that it was difficult to determine with absolute certainty if the 1997 findings were related to C.diff infection or ischemic colitis with superimposed C.diff. The VHA examiner also said that C.diff colitis would only account for the Veteran's symtoms in 1997 and not his chronic complaints. However, the VA physician was not asked to, and did not render an opinion as to whether treatment rendered by VA medical personnel was the proximate cause of the disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable.
In a September 2010 written statement, Dr. R.H.G. responded to the VA examiner's opinion (see Volume 5 of claims file). It was noted that the VHA physician asserted that the rarity of the Veteran's condition stemmed from the rarity of the substandard care of his C.diff. But, Dr. R.H.G. said that the failure by the VA to act upon the C.diff culture, as well as the endoscopic signs of pseudomebranous colitis, was a gross breach of the standard of care. Dr. R.H.G. stated that the notation of a negative test in February 1997 was false, and concluded that the breaches of the standard of care exposed the Veteran to a continuing, unchecked colonic infection with C.diff, that, as a matter of medical probability remained a significant contributory factor to his ongoing colonic pathology.
Here, the Board is of the opinion that a VA medical opinion should be obtained regarding the Veteran's claim for compensation pursuant to 38 U.S.C.A. § 1151.
Given the lengthy history of the current appeal, the Board notes that, as any decision with regard to the claim for service connection may affect the Veteran's claims for earlier effective dates for his TDIU and finding of permanent and total disability rating, these claims are inextricably intertwined with the service connection claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As the claims should be considered together, it follows that, any Board action on the TDIU and permanent and total disability claims, at this juncture, would be premature. Thus, Board consideration of these matters is deferred at this time.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. The RO/AMC should refer the claims folder to a VA physician to provide an etiology opinion. The entire claims folder must be made available to the examiner for review, and the examiner is requested to indicate that a review of the claims folder was completed.
a. The VA physician should provide an opinion as to whether there is a 50 percent probability or greater that additional disability was actually caused by VA hospitalization in February 1997 or medical or surgical treatment (or lack thereof). If so, was it proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or was it proximately caused by an event not reasonably foreseeable.
b. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. Any opinion should be reconciled with the VA medical records of treatment, the statements by the Veteran and the October 2009 and September 2010 reports from Dr. R.H.G. and the June 2010 VHA medical report.
c. A complete rationale for all opinions expressed must be provided in the claims folder.
3. Finally, readjudicate the Veteran's claims. If the decision remains in any way adverse to the appellant, he and his attorney should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits and a summary of the evidence of record. The Veteran and his representative should be given the opportunity to respond thereto
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs